Surrogacy Agreements Research Articles

Legal Regulation of Family Relations Involving Foreigners in the Russian Federation: Results and Prospects

The article analyses the results of the regulation of family relations involving foreign citizens and persons without citizenship in Russia. There is some imperfection of the rules of Section VII of the Family Code of the Russian Federation, their non-conformity to modern needs in the legal regulation of family relations involving foreigners. It is noted that there are some gaps that require correction. The author draws attention to new types of marital and family relations, as well as the significant complication of property and personal non-property relations of family members, and highlights the importance of the problems of unification of family law, as well as account of new developments on choice of applicable law and the application of foreign law. The article formulates conflict-of-laws rules that would establish an effective system of legal regulation of family relations involving foreigners. In particular, it is proposed to amend and supplement Art. 161,163 of the Family Code of the Russian Federation, consolidate the conflict-of-laws rules, identifying the law to be applied to the surrogacy agreement.

Law of assisted reproductive surrogacy in Malaysia: a critical overview

Both traditional and gestational surrogacy are now entering the public mind as a major public policy issue, because of concern for apparent truncation of the surrogate mother’s rights. This article sets out to investigate some key relevant rights, the policy issues as yet unresolved, and the character of the current regulatory regime. Modern medicine, specifically assisted reproductive technology, has made legislation obsolete in many jurisdictions around the world, including in Malaysia. These new medical practices present many significant legal problems, with which the courts and legislators still struggle. A proposed statute, the Assisted Reproductive Technique Services Act, aimed at regulating reproductive technologies, including surrogacy arrangements, will be introduced in the Malaysian parliament soon. The proposed Malaysian Act will address issues such as surrogacy, sperm or egg banking, and sperm donation. Malaysia is moving cautiously towards regulation on this issue and is trying to avoid becoming a ‘rent-a-womb country’. Thus, this article asks the question as to what policy considerations are in place, in the current Malaysian regulatory regime, to care for the rights of the surrogate mother? It will try to show that there is still a danger that Malaysia could become a ‘rent-a-womb country’, with its necessary implications of property rights over surrogate mothers. The article employs section-by-section synthesis to reach its conclusions. Argument will suggest that the current state of the law in Malaysia, as to both traditional and gestational surrogacy, seems to be that the regulatory regime is a combination of the general law, private ordering, registration and enforceable professional ethics. However, there is no Malaysian statutory law in place, in the contemporary social context, expressly prohibiting a term in a surrogacy contract that might imply property rights over the surrogate mother. This is a serious apparent lacuna in the law, and might suggest that the laws of transnational crime be considered, as an alternative, as applicable to the surrogacy agreement.

GESTACIÓN POR SUSTITUCIÓN: CAMBIOS EN EL RECONOCIMIENTO DE LA FILIACIÓN

This paper aims to analyse concisely the current situation towards the surrogacy agreement, both in Spain and overseas. This analysis highlights the lack of consistency of this agreement in different countries, as well as the main obstacles that prevent an unified regulation. Finally, this paper examines the co-existence of different legal systems and its consequences in a world where human relationships do not necessarily end at borders.

Mommy Dearest: Determining Parental Rights and Enforceability of Surrogacy Agreements

The governing law in this area is new and evolving and, as such, the allocation of the legal rights and responsibilities depend on which state has jurisdiction over the matter. This article will discuss the basic types of surrogacy agreements and examine the legal distinctions of their enforceability under New York and California law.

Child Rights in Surrogacy

A surrogacy arrangement or surrogacy agreement is the carrying of a pregnancy for intended parents. There are two main types of surrogacy, gestational surrogacy (also known as host or full surrogacy1) which was first achieved in April 1986 2 and traditional surrogacy (also known as partial, genetic, or straight surrogacy). But with all this comes the question of Child Rights for e.g. “who has the rights to the child conceived via surrogacy?”; “Is the surrogate mother the legal guardian of the child?” and so on. In this paper I will try to answer the questions related to child rights during surrogacy and adoption.

The Voiceless Citizens

As reproduction by surrogacy increases, the problems arising from surrogacy contracts also increase. Countries around the world are being asked to solve never-before-seen legal problems arising from surrogacy agreements. When trying to solve the newly arisen problems, the rights of the child born from the surrogacy contract tend to be overlooked. Enacted laws try to solve the enforceability of the contract and protect the rights of the parties involved— such as, who are the legal parents of the child if both sides of the agreement wish to keep the child. However, few of these laws address a situation where the opposite is true, a situation in which neither side wants to keep the child. In these situations, the primary focus should be the rights of the child, not the rights of the people involved in the contract. The law should be up to date and ready to protect the well-being of the child—a person who never asked to be born. Specifically, rights such as the citizenship of the child, the right to financial support, the right to inherit, and the right to identity should be protected. The Comment discusses how prepared U.S. and Texas law is to handle problems arising from a surrogacy contract in which neither side wants to keep the child. In this case, a child with intended American parents should have the right to be a U.S. citizen, the right to receive financial support from a party involved in the contract, the right to inherit, and the right to know his or her identity. These problems may not be currently present, but with the increase of surrogacy use, it surely could be an issue in the future.

Surrogates in Quebec: The Good, the Bad, and the Foreigner

Quebec's legal regime for the establishment of parent-child relationships was substantially modified in 2002 in order to achieve equality. Reforms left untouched, however, an existing rule justified by women's equality: the absolute nullity of surrogacy agreements. The article shows how the rule has led judges to preclude the filiation of children born of surrogacy in certain situations and how it has forced judges to apply creative, albeit unpredictable, solutions in others. It explores the decisions of Quebec courts, through the portraits of surrogates traced in the decisions—the good, the bad, and the foreigner. The brief overview of cases exhibits how similar and different facts have an inconsistent impact on the ratios of the decisions. The weight given to some legal elements (the importance of the declaration and attestation of birth, the possibility of considering the consent of the father vitiated, the single surrogate versus the surrogate in a relationship, the civil status of the intended parents, and so on) to the detriment of others is problematized. The article depicts how labels and stereotypes predominate in legal reasoning when legal rules are not clear, creating problematic discourses about sensitive topics (womanhood and motherhood, children's rights, and sexual orientation).

Presupuestos teórico jurídicos de los contratos biojurídicos

The biolegal contracts are particularly interesting to legal philosophers nowadays. The possibilities opened up by new technologies require to examine some of these contracts with criteria that go beyond freedom of contract and autonomy for reasons ranging from the violation of human dignity to the disruption of public order. In this paper we will use the gestational surrogacy agreement as paradigmatic, with particular attention to the relationship of justice underlying these contracts.

Surrogacy world's perspective – A review

Nowadays surrogacy is a process practiced in many countries of the world and spark a deep interest in many couples that consider it as the only way to realize their dream to have a family. This article focuses on the increasingconclusion ofinternational surrogacy agreements as a consequence of the different countries' approaches, and aims to provide analysis of the different attitudes shown, specifically, by the Italian, Californian, Indian and English legal system. The article highlights the importance of the protection of human rights of people involved in surrogacy process underlining that,in particular with regard to the unborn child, it will be the best interest of the child to represent the guiding principle.

Surrogacy commissioning fathers and HIV

Surrogacy is not regulated by a single legal instrument only, nor is confirmation of a surrogacy agreement by the High Court an unqualified green light for the surrogacy process to proceed. In the context of the HIV status of the commissioning father, whose gametes are to be used for the conception of the child in pursuance of a surrogacy agreement, the intended in vitro fertilisation of the surrogate mother may only take place on condition that the commissioning father, and his semen, have been tested for HIV; that he has consented to his HIV status being made available to the surrogate mother, and if he is HIV-positive, that sperm washing will be used to minimise the risk of infection and that the surrogate mother has been informed of his HIV status, and given her informed consent.

Surrogate pregnancy: ethical and medico‐legal issues in modern obstetrics

Key content This comprehensive literature review of the medico‐legal challenges of surrogacy in modern obstetrics, highlights recent changes in UK law, the limited guidelines and legislation available, and the legal requirements for parenthood and parental rights. UK legislation involving surrogacy and the medico‐legal definition of parenthood is reviewed. There is new UK surrogacy legislation affecting the parental order qualification, indicating that obstetricians will see more surrogate cases in the immediate future. Conflicts can arise when surrogacy agreements are broken, since they are lawful but legally unenforceable in the UK. There are ethical and legal dilemmas for healthcare professionals in managing surrogate pregnancies in the absence of professional guidance, and as a result the authors of this review introduced a practical guide and pro forma. Learning objectives To explain current legislation surrounding surrogacy in the UK. To discuss ethical and moral concerns regarding the practice of surrogacy. To apply medico‐legal principles in the management of surrogate pregnancy. Ethical issues The exploitation versus empowerment and autonomy of women participating in surrogacy. The commodification of reproduction through surrogacy. The validity of consent with the possible presence of emotional or financial coercion, and the unpredictability of outcomes in surrogacy arrangements.

In Defense of Surrogacy Agreements: A Modern Contract Law Perspective

The American public’s attention was first exposed to the practice of surrogacy in 1988 with the drama and verdict of the Baby M case. Over the last twenty-five years the practice of surrogacy has slowly but surely become increasingly socially accepted and even welcomed. This evolution serves to emphasize the bizarre judicial and legislative silence regarding surrogacy that exists today in the vast majority of U.S. jurisdictions. In this article I describe and trace the dramatic revolution that took place during the recent decades as the surrogacy practice has totally changed from one viewed as problematic and rejected to a socially widespread and accepted practice. As set forth below, this recent shift demands increasing legal recognition of the legality of surrogacy contracts and moderate regulation of their enforcement. In doing so, this article explores the various intrinsic contractual problems of surrogacy contracts - the problem of unequal power of the contracting parties, the problem of change of heart and the problem of changed circumstances. As presented the preliminary normative claim regarding those contractual problems was not properly addressed by classical contract law, however, with the development of modern contract law we are now supplied with a well-equipped framework and doctrines appropriate for dealing with such problems. In order to demonstrate my innovation I will represent one main solution that the modern contract law gives us for each given contractual problem. The article then concludes with an appeal to the legislature and judiciary for a legal framework and a suggested outline of the practical administrative-legal mechanisms for accomplishing the complete legal and social recognition of surrogacy contracts.

Commercial surrogacy: how provisions of monetary remuneration and powers of international law can prevent exploitation of gestational surrogates

Increasing globalisation and advances in artificial reproductive techniques have opened up a whole new range of possibilities for infertile couples across the globe. Inter-country gestational surrogacy with monetary remuneration is...

A study on the effectiveness of Surrogacy Agreement

A study on the effectiveness of Surrogacy Agreement

When Moral Outrage Determines a Legal Response: Surrogacy as Labour

Surrogacy is a complex issue that evokes a strong moralistic response. In South Africa, commercial surrogacy is illegal and surrogacy agreements that contain financial incentives beyond expenses associated with the pregnancy and birth are unenforceable. Despite this, commercial surrogacy appears to remain a reality in South Africa. Further, given the pervasive poverty that exists in the country, the question arises, should commercial surrogacy be permitted as a means to alleviate the dire circumstances of poverty-stricken women and those dependent on them. I seek to answer this question by taking a close look at the nature of surrogacy, some of the arguments for and against it, and the Indian model of commercial surrogacy as a potential model for commercial surrogacy in South Africa.

Gestational Surrogacy Agreements: Why Indiana Should Honor Them and What Physicians Should Know until They Do

Gestational Surrogacy Agreements: Why Indiana Should Honor Them and What Physicians Should Know until They Do

Surrogacy and the Politics of Commodification

I INTRODUCTION In 2004, the Illinois legislature passed the Gestational Surrogacy Act, which provides that a child conceived through in vitro fertilization (IVF) and born to a surrogate mother automatically becomes the legal child of the intended parents at birth if certain conditions are met. Under the Act, the woman who bears the child has no parental status.' The bill generated modest media attention, but little controversy; (2) it passed unanimously in both houses of the legislature and was signed into law by the governor. (3) This mundane story of the legislative process in action stands in sharp contrast to the political tale of surrogacy that unfolded in the 1980s and early 1990s as the Baby M case (4) left its mark on American law. It was through the lens of Baby M that this innovative use of reproductive technology was first scrutinized as an issue of social, political, and legal interest. (5) Over the course of the litigation between the intended parents, William and Elizabeth Stern, and the surrogate mother, Mary Beth Whitehead, hostility toward commercial surrogacy (6) arrangements hardened. Opponents of surrogacy--mostly feminists and religious groups--argued that the contracts were baby-selling arrangements that exploited poor women who either were coerced or did not understand the consequences of their decisions. Opponents argued that surrogacy degraded the female reproductive function and undermined the family. This framing of the transaction as illegitimate commodification was adopted by the New Jersey Supreme Court in Baby M and prevailed for several years thereafter, with far-reaching effects on legal regulation. By the early 1990s, many states had enacted laws prohibiting or severely restricting surrogacy agreements. (7) Some observers predicted the end of this particular use of reproductive technology. (8) But that did not happen. In fact, the politics and social meaning of surrogacy arrangements have slowly changed, and the alarm and hostility that surrounded this issue have diminished substantially. An alternative flame has emerged, in which altruistic surrogates (contractually bound and compensated nonetheless) provide the gift of life to deserving couples who otherwise would be unable to have children. News stories about surrogacy arrangements in the past decade have tended to be upbeat, human-interest tales describing warm relationships between surrogates and the couples for whom they bear children (9)--a far cry from the acrimonious battle between Ms. Whitehead and the Sterns over Baby M. The political and judicial response to surrogacy has also changed in recent years. In Illinois and other states, the contemporary legislative approach has been largely pragmatic, driven by a perception that parties will continue to enter these agreements and thus, that it is important to have procedures that establish parental status in intended parents. (10) In the absence of statutory authority, several courts, including the California Supreme Court, have also enforced gestational-surrogacy contracts and have held that the intended parents can be named on the birth certificate. (11) Although social conservatives continue to speak out against surrogacy in the political arena, (12) most contemporary groups interested in this issue advocate in favor of laws enforcing the arrangements. (13) This account raises a number of puzzling questions. How did it happen that surrogacy was framed as baby selling during the Baby M litigation? And why did the case generate such powerful emotional, ideological, and political responses that, institutionalized through legislation, continue to define the law in many states? Just as important--why did the politics and social meaning of surrogacy change, such that a more sanguine view of the practice seems to have emerged in recent years? Why did interest groups, particularly feminists, that played such a key role in advocating restrictive laws after Baby M, mobilize during the litigation and then over time seemingly lose interest in this issue? …

HOFSTRA'S FAMILY LAW WITH SKILLS COURSE: IMPLEMENTING FLER (THE FAMILY LAW EDUCATION REFORM PROJECT)

The Family Law Education Reform Project (FLER) Final Report documented that the current doctrinally oriented family law curriculum at most law schools does not adequately prepare students for modern family law practice. FLER recommended that law school courses move from the study of cases to the study of the legal system's effect on families, and integrate the study of alternative dispute resolution and interdisciplinary knowledge. In response, Hofstra Law School has made a comprehensive attempt to implement FLER's curricular recommendations. This article discusses one major innovation – the Family Law with Skills course. Family Law with Skills is the basic course in Hofstra's revised curriculum and is designed to integrate doctrinal teaching with professional skills development. In addition to studying legal doctrine, students are required to engage in structured field observation of family court proceedings; interviewing, counseling, negotiation, and mediation representation exercises in a divorce dispute; direct and cross examination of a social worker in a child protection dispute; and drafting of a surrogacy agreement. The article describes each exercise and discusses its rationale, student reaction to the course, and lessons learned.

Intended Parents and the Problem of Perspective

When asked to identify the legal parents of a child, traditional family law principles look backwards in time, primarily to biology and to marriage. People using assisted reproductive technologies such as surrogacy, however, seek to manifest their intent to become parents with a forward-looking temporal perspective, before a child is conceived and born. Of the existing doctrines used to identify parentage – marital presumption, biology, functional theories, and intent – only intent facilitates a forward-looking perspective. Intent through time, however, is not treated consistently. A woman, for example, may donate an egg, and may place a baby up for adoption, but generally cannot contract into genetic surrogacy, becoming pregnant with her own biological child with the intent of giving the child to intended parents after birth. In such a case, she must renew her intent to give up the child after birth. Intent shown by different groups is also given different weight through time: it is easier for women to opt into parenthood in advance than it is for men. Although the Supreme Court has held that different treatment of unwed mothers and fathers at birth does not violate the Equal Protection Clause, the reasons behind differential treatment by gender are not equally applicable through time. This paper argues that the ideal regime of identifying parentage allows entry of pre-birth parentage orders and creates a hierarchy of rules placing intent at the top. This regime would mandate, for example, enforcement of surrogacy agreements even where the surrogate mother bore her own biological child.

A Comparison of Three Surrogacy Agreement Cases Using AHP

A Comparison of Three Surrogacy Agreement Cases Using AHP